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Family Needs in the Legal Balance

TWO unrelated but linked bits of news have been heating up the Life’s Work transom in recent weeks.

The first is an announcement by Kathleen M. Rice, the new district attorney in Nassau County, N.Y., that she will not allow part-time work in her office. The dozen prosecutors — mostly women, mostly working a reduced schedule to spend more time with their children — were told they had to ramp up to full time or leave.

The second is the release of a study by the Center for WorkLife Law at the University of California Hastings College of Law in San Francisco, which discovers, in effect, a new category of discrimination suit being brought and being won. Mary C. Still, a faculty fellow at the center and author of the report, has named the subgroup “family responsibilities discrimination,’’ or F.R.D. (You can call it Fred.) The plaintiffs are mostly parents and mostly women, but about 10 percent are men, and some are caring for spouses or parents, not children. All are claiming discrimination at work because they are giving care at home.

Like so many evolving subsets in law, F.R.D. does not exist in any statute. Rather it is an argument being made often enough that it can now be counted and analyzed. “Discrimination based on caregiving is not an expressed category,” said Joan C. Williams, executive director of the center. “It’s a reflection of the creativity of lawyers who have set up a new subcategory of litigation within existing workplace discrimination laws.”

And they are doing so with increasing frequency. The first case that could be considered F.R.D. was brought in 1971. There were eight such cases in the 1970’s. From 1996 to 2005, in contrast, there were 481, which in turn was a 400 percent increase over the total brought during the decade before. Strikingly, all this came at a time when total antidiscrimination cases in general decreased 23 percent.

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This is gratifying to Ms. Williams because she helped start the trend. In her book “Unbending Gender: Why Family and Work Conflict and What to Do About It” (Oxford University Press, 2001), Ms. Williams refuted the prevailing argument of the time, one she sums up as “You can’t sue for work-family conflict; that’s a woman’s choice.” She argued that discrimination suits were justified when limits or penalties were placed on employees simply because of their role as givers of care.

And sue they have in the years since Ms. Williams first made her case. A school psychologist’s right to sue was upheld when she accused her district of denying her tenure after telling her it was “not possible to be a good mother and have this job.” A sales representative for a mattress company was granted $1.1 million in compensatory and punitive damages (later reduced by the court to $301,500 because of a statutory cap) when she was denied a promotion because she had children and her supervisor “did not think she’d want to relocate her family.” A woman who was being paid less per hour because of a part-time schedule was awarded $500,000.

It is a trend that has “confounded observers,” Ms. Williams says, because these decisions are being upheld by both liberal and conservative judges. Recently the Supreme Court ruled unanimously in favor of a man fired for taking time off to care for his extremely ill wife and, also unanimously, confirmed a lower-court ruling in favor of a woman whose hours were changed, preventing her from caring for her son, who has Down syndrome.

“The notion that children need and deserve time with their parents and that family members need to care for ill children, spouses and parents is widely shared from right to left,” Ms. Williams said.

It has also become a question of liability. The success of such cases has taken work-life policies from the realm of benefits into the realm of risk management. “If you don’t handle work-family conflicts well and responsibly,” Ms. Williams said, “you are increasingly at risk.”

Which takes us back to the Nassau County district attorney. It would be simple to paint her as an uncaring throwback, a woman without children and no sympathy for those who do. But, as she explained in an op-ed response in Newsday this month, it is more complicated. “By county mandate,” she writes, “the district attorney’s office is limited in the number of prosecutors it can have at any one time. Each part-time employee takes up one position as though he or she were a full-time prosecutor.”

But there have to be other ways. Changing the staffing formula comes to mind, so that part-time workers count as, well, part-time workers. As Ms. Williams points out, that might not merely be the right thing to do, it might also be the best legal route — because, I am told, at least one of the lawyers about to lose her part-time schedule has already contacted a lawyer.

This column about the intersection of jobs and personal lives appears every other week. E-mail: Belkin@nytimes.com.